Report on Terrorism & Human Rights
Inter-American Commission on Human Rights
OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr.
22 October 2002
 

Preface
Executive Summary

I. Introduction

A. Purpose and Context of the Report
B. Terrorism in the Context of International Law
C. Methodology

II. Legal Framework for Commission's Analysis

A. The International Law Against Terrorism
B. International Human Rights Law
C. International Humanitarian Law

III. Norms and Principles of International Human Rights and Humanitarian Law Applicable to Terrorist Situations

A. Right to Life

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Life and Terrorism

B. Right to Personal Liberty and Security

1. International Human Rights Law
2. International Humanitarian Law
3. Right to Personal Liberty and Security and Terrorism

C. Right to Humane Treatment

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Humane Treatment and Terrorism

D. Rights to Due Process and to a Fair Trial

1. International Human Rights Law
2. International Humanitarian Law
3. Rights to Due Process and to a Fair Trial and Terrorism

E. Right to Freedom of Expression

1. International Human Rights Law
2. International Humanitarian Law
3. The Right to Freedom of Expression and Terrorism

F. The Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

1. International Human Rights Law
2. International Humanitarian Law
3. The Obligation to Respect and Ensure without Discrimination, the Right to Judicial Protection and Terrorism

G. Other Fundamental Rights

1. Rights to Freedom of Assembly, Association, and Conscience and Religion
2. Rights to Property and Privacy
3. Right to Participate in Government

H. Migrant Workers, Asylum-Seekers, Refugees and other Non-Nationals

1. Right to Personal Liberty and Security
2. Right to Humane Treatment
3. Right to Due Process and to a Fair Trial
4. Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection

IV. Recommendations

Annexures

Annex I - IACHR Resolution on Terrorism and Human Rights ;
Annex II - Table of OAS Member State Participation In Human Rights
and Humanitarian Law Treaties
Annex III - Inter-American Convention Against Terrorism, adopted and opened
for signature by OAS General Assembly Resolution AG/RES. 1840 (XXXII-O/02)
Annex IV - OAS General Assembly Resolution AG/RES. 1906 (XXXII-O/02),
“Human Rights and Terrorism”

Footnotes

In fulfilling this responsibility, the Commission has emphasized in no uncertain terms that ensuring fundamental human rights in these situations does not contradict the obligation of member states to protect their populations from terrorist violence. To the contrary, the very purpose of anti-terrorist initiatives is to preserve the fundamental rights and democratic institutions that terrorism seeks to undermine and destroy. And through mechanisms such as derogations and restriction clauses, international human rights law recognizes and provides for means by which the restriction or suspension of certain rights may be necessary in exceptional circumstances to protect human rights and democracy.

The terrorist attacks that occurred in the United States on September 11, 2001, though extraordinary in their magnitude and horror, have not changed these fundamental precepts. Indeed, now more than ever it is crucial for member states to ensure that their responses to these inexcusable acts of violence honor faithfully the liberties and values upon which the democratic societies of our Hemisphere are built. To accept less only furthers the interests of forces that present among the most profound threats to our region in the 21st Century.

In this setting, the Inter-American Commission on Human Rights presents this Report on Terrorism and Human Rights, in the hope that it will assist member states of the Organization of American States and other interested actors in the inter-American system in ensuring that anti-terrorism initiatives comply fully with fundamental human rights and freedoms and thereby achieve one of the crucial components for a successful campaign against terrorist violence.

The Commission would like to recognize the work of its Executive Secretariat in the preparation of this report. In particular, it wishes to acknowledge the contributions of Brian Tittemore, principal drafter, with the collaboration of Bernard Duhaime, Human Rights Specialists. Also contributing to particular components of the report were Eduardo Bertoni, Special Rapporteur on Freedom of Expression, Lisa Yagel, Attorney with the Special Rapporteurship on Freedom of Expression, Helena Olea, Attorney with the Rapporteurship on Migrant Workers and their Families, and Gabriela Hageman, Principal Secretary, and Nora Anderson, Gloria Hansen, Documents Technicians.

Among the principles explicitly recognized in this Convention is the requirement that anti-terrorist initiatives must be undertaken in full compliance with member states’ existing obligations under international law, including international human rights law. According to Article 15 of the Convention, “[t]he measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.” This prerequisite reflects the fundamental principle that the campaign against terrorism and the protection of human rights and democracy are complementary responsibilities; the very object and purpose of anti-terrorist initiatives in a democratic society is to protect democratic institutions, human rights and the rule of law, not to undermine them.

3. The Inter-American Commission on Human Rights, as the OAS organ charged with promoting the observance and protection of human rights in the Hemisphere, has since its creation in 1959 gained extensive experience in evaluating the human rights implications of numerous anti-terrorist initiatives undertaken by OAS member states. In doing so, the Commission has consistently emphasized the need for unqualified respect for the full scope of human rights. This includes rights that have not been legitimately suspended under a state of emergency in strict compliance with the principles and conditions governing derogations from certain protected rights.

4. In order to reinforce its doctrine in this area and to assist OAS member states in complying with their international legal obligations, the Commission decided in December 2001 to undertake a study by which it would reaffirm and elaborate upon the manner in which international human rights requirements regulate state conduct in responding to terrorist threats. To this end, the Commission convened a panel of international experts during its regular period of sessions in March 2002 to obtain timely and specialized information on the issue of terrorism and human rights. The Commission also invited OAS member states and pertinent non-governmental organizations to submit written observations on this topic.

5. In preparing its report, the Commission adopted a rights-based approach, by which it has examined counter-terrorism initiatives in relation to several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the obligation to respect and ensure, non-discrimination and the right to judicial protection. The Commission has also included an abbreviated discussion of several additional rights potentially affected by anti-terrorist measures, as well as an analysis of the particular vulnerabilities of migrant workers, asylum seekers, refugees and other non-nationals.

6. Several fundamental precepts underlie the Commission’s analysis as a whole. First is a recognition that to date there has been no international consensus on a comprehensive international legal definition of terrorism.

As a consequence, the characterization of an act or situation as one of terrorism, including the labeled “war on terrorism”, cannot in and of itself serve as a basis for defining the international legal obligations of states.

The Commission has not disregarded in this connection that terrorist acts such as those perpetrated on September 11, 2001 may well lead to further developments in international law. This could include, for example, the negotiation of international instruments that are designed to address a new form of “terrorist war” waged by or against non-state actors engaged in armed violence with states at an international level. Such developments are only speculative at this stage, however, and accordingly the Commission’s discussion in this report has focused upon member states’ obligations under international law as presently constituted.

7. The absence of an internationally-accepted definition of terrorism does not mean that terrorism is an indescribable form of violence or that states are hot subject to restrictions under international law in developing their responses to such violence.

To the contrary, it is possible to identify several characteristics frequently associated with incidents of terrorism that provide sufficient parameters within which states’ pertinent international legal obligations in responding to this violence can be identified and evaluated. These characteristics relate to the nature and identity of the perpetrators of terrorism, the nature and identity of the victims of terrorism, the objectives of terrorism, and the means employed to perpetrate terrorist violence.

 In particular, the Commission has noted that terrorism may be perpetrated, individually or collectively, by a variety of actors, including private persons or groups as well as governments, may employ varying means and levels of violence ranging from mere threats devised to induce public panic to weapons of mass destruction, and may impact detrimentally upon a variety of persons who are afforded particular protections under international law, including women, children and refugees.

8. Drawing upon these factors, the Commission has observed that several regimes of international law may potentially apply to situations of terrorism. Terrorist violence may be perpetrated in times of peace, when international human rights law is fully applicable, during a state of emergency, when certain human rights protections may be the subject of derogations, or during an armed conflict, to which international humanitarian law applies.

Further, the nature and level of violence generated by or against perpetrators of terrorism may trigger a state of emergency or armed conflict. Accordingly, the Commission’s analysis is not limited to member states’ obligations under inter-American human rights instruments. It has also taken into account member states’ conventional and customary international legal obligations regardless of their bilateral or multilateral character, or whether they have been adopted within the framework or under the auspices of the inter-American system, including international humanitarian law and international refugee law.

These obligations constitute components of a interrelated and mutually-reinforcing regime of human rights protections that must be interpreted and applied as a whole so as to afford individuals the most favorable standards of protection available under applicable law. Certain obligations may also provide a lex specialis for the interpretation and application of international human rights law. In particular, international humanitarian law prescribes extensive and detailed rules, standards and mechanisms concerning the protection of victims of war that must be taken into account in properly interpreting and applying international human rights protections in armed conflict situations.

9. Closely connected with the regimes of law considered in the Commission’s analysis is the importance of properly determining the status of persons who fall within the authority or control of a state or its agents in the course of anti-terrorist initiatives. It is only when the legal status of such persons is properly determined that they can be afforded the rights to which they are entitled under domestic and international law by reason of that status. Where terrorist violence triggers or occurs in the context of an international armed conflict, it is particularly crucial for member states to determine, in accordance with the Third Geneva Convention of 1949 and Additional Protocol I with respect to States that have ratified it, whether a person falling within a state’s power constitutes a civilian or combatant and, in the case of the latter, whether the combatant is “privileged” and therefore entitled to prisoner of war status and immunity from prosecution under the domestic law of his captor for his hostile acts that do not violate the laws and customs of war.

10. In the context of the above precepts, the Commission has reached several conclusions, which are summarized below, concerning the rights and freedoms most implicated by states’ anti-terrorist initiatives:

the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression, and the obligation to respect and ensure, non-discrimination and the right to judicial protection, as well as the situation of migrant workers, asylum seekers, refugees and other non-nationals.

In particular, the Commission has identified the minimum standards of protection that are common to both international human rights law and international humanitarian law in these areas. Where appropriate, the Commission has also identified areas in which the lex specialis of international humanitarian law may result in distinct standards of treatment applicable in situations of armed conflict.

11. Perhaps in no other area is there greater convergence between international human rights law and international humanitarian law than in the standards of humane treatment. While governed by distinct instruments, both regimes provide for many of the same minimum and non-derogable requirements dealing with the humane treatment of all persons held under the authority and control of the state. Moreover, under both regimes the most egregious violations of humane treatment protections give rise not only to state responsibility, but also individual criminal responsibility on the part of the perpetrator and his or her superiors.

12. Foremost among these standards is the absolute prohibition of torture or any other cruel, inhuman or degrading treatment or punishment by the state or its agents. This proscription applies to all forms of treatment attributable to the state including, for example, penal or disciplinary sanctions such as corporal punishment and prolonged periods of time in solitary confinement. Also prohibited are inhumane methods of interrogation, including severe treatment such as beatings, rape, or electric shocks, as well as more subtle but equally injurious treatments such as administration of drugs in detention or psychiatric institutions or prolonged denial of rest or sleep, food, sufficient hygiene or medical assistance. International human rights and humanitarian law also prescribe comparable standards concerning conditions of detention. These requirements relate to such matters as accommodation, nutrition and hygiene, as well as additional protections for particular categories of persons, such as women and children.

13. According to standards applicable in peacetime and in wartime, the treatment of detainees must remain subject to continuous and effective supervision by the appropriate mechanisms as prescribed by international law. In situations other than armed conflict, this requires supervision by regularly constituted courts through habeas corpus or equivalent relief. In times of war, oversight mechanisms include the International Committee of the Red Cross and, in situations of international armed conflict, the Protecting Powers regime provided for under the 1949 Geneva Conventions.

14. Notwithstanding the existence of these specific rules and mechanisms governing the detention of persons in situations of armed conflict, there may be circumstances in which the supervisory mechanisms under international humanitarian law are not properly engaged or available, or where the detention or internment of civilians or combatants continue for a prolonged period. Where this occurs, the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum standards of treatment of detainees, and the supervisory mechanisms under international human rights law, including habeas corpus and amparo remedies, may necessarily supercede international humanitarian law in order to ensure at all times effective protection of the fundamental rights of detainees.

15. As with the standards governing humane treatment, international human rights and humanitarian law subject member states to essentially the same non-derogable obligation to respect and ensure respect for their international commitments through appropriate and effective mechanisms. They also share the absolute and overriding prohibition against discrimination of any kind, including impermissible distinctions based upon race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

While the doctrine of the inter-American human rights system does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, any permissible distinctions must be based upon objective and reasonable justification, must further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and the means must be reasonable and proportionate to the end sought.

Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction. In the campaign against terrorism, states must be particularly vigilant to ensure that state agents, including military forces, conduct themselves fully in accordance with the proscription against discrimination.

16. The Commission’s analysis clarifies that international human rights and humanitarian law share many of the same minimum prerequisites governing an individual’s right to due process and to a fair trial. Where member states endeavor to investigate, prosecute and punish individuals for crimes relating to terrorism, the Commission stipulates that member states remain bound by fundamental and non-derogable due process and fair trial protections in all instances, whether in times of peace, states of emergency or armed conflict. These protections encompass fundamental principles of criminal law as well as entrenched procedural and substantive safeguards.

17. Among the protections highlighted by the Commission is the requirement that any laws that purport to proscribe and punish conduct relating to terrorism be classified and described in precise and unambiguous language that narrowly defines the unlawful conduct, in accordance with the principle of legality.

The Commission observes that states in this and other regions have taken a variety of approaches in attempting to prescribe sufficiently clear and effective anti-terrorism laws. Some states have endeavored to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence. Others have chosen not to prescribe terrorism as a crime per se, but rather have varied existing and well-defined common crimes, such as murder, by adding a terrorist intent or variations in punishment that will reflect the particular heinous nature of terrorist violence. Whichever course is chosen, OAS member states should be guided by the basic principles articulated by the Inter-American Court and Commission on this issue. In order to ensure that punishments imposed for crimes relating to terrorism are rational and proportionate, member states are also encouraged to take the legislative or other measures necessary to provide judges with the authority to consider the circumstances of individual offenders and offenses when imposing sentences for terrorist crimes.

18. Fundamental principles of due process and a fair trial applicable at all times also entail the right to be tried by a competent, independent and impartial tribunal as defined under applicable international human rights or humanitarian law. This requirement generally prohibits the use of ad hoc, special, or military tribunals or commissions to try civilians for terrorist-related or any other crimes. A state’s military courts may prosecute members of its own military for crimes relating to the functions that the law assigns to military forces and, during international armed conflicts, may try privileged and unprivileged combatants, provided that the minimum requirements of due process are guaranteed. Military courts may not, however, prosecute human rights violations or other crimes unrelated to military functions, which must be tried by civilian courts.

19. Among the non-derogable procedural guarantees identified by the Commission under both international human rights and humanitarian law are the right of an accused to prior notification in detail of the charges against him or her, the right to adequate time and means to prepare his or her defense which necessarily includes the right to be assisted by counsel of his or her choosing or, in the case of indigent defendants, the right to counsel free of charge where such assistance is necessary for a fair hearing, and the right not to testify against oneself. Also protected is the right to be advised on conviction of his or her judicial and other remedies and of the time limits within which they may be exercised, which may include a right to appeal a judgment to a higher court.

20. In situations of emergency, there may be some limited aspects of the right to a fair trial that may be legitimately suspended, provided that states comply strictly with the conditions governing derogation clauses under international human rights instruments, and provided that they do not endeavor to deny an individual more favorable protections that are non-derogable under other applicable international instruments.

Potentially derogable protections may include, for example, the right to a public trial and a defendant’s right to examine or have examined witnesses against him or her, where limitations on these rights are necessary to ensure the safety of judges, lawyers, witnesses or others involved in the administration of justice.

Such measures can never be justified, however, where they may compromise a defendant’s non-derogable due process protections, including the right to prepare a defense and to be tried by a competent, impartial and independent tribunal.

21. The right to life is afforded both similar and distinct treatment under international human rights and humanitarian law. Under both regimes, the use of lethal force by state agents must comply with principles of proportionality and distinction as defined under each area of law.

Accordingly, in armed conflict situations, parties to the conflict must distinguish between military objectives and civilians or civilian objects, and launch attacks only against the former.

Similarly, in peacetime situations, state agents must distinguish between persons who, by their actions, constitute an imminent threat of death or serious injury, or a threat of committing a particularly serious crime involving a grave threat to life, and persons who do not present such a threat, and use force only against the former.

At the same time, privileged combatants in situations of armed conflict are not prohibited from using lethal force against enemy combatants who have not laid down their arms or been placed hors de combat and the death of a combatant under these circumstances does not constitute a violation of the right to life when interpreted in light of the applicable laws or customs of war.

22. Also pertinent to the right to life is the imposition of the death penalty as a punishment for terrorist-related offenses. Irrespective of whether this measure is imposed during peacetime or armed conflict situations, states must ensure that their legislative provisions comply with certain conditions that limit a state’s capacity to apply capital punishment to certain offenses or offenders. They must also ensure that the proceedings through which a capital sentence may be imposed comply with strict procedural requirements and are subject to rigorous control by fundamental minimum judicial guarantees. Without going so far as to abolish the death penalty, the inter-American instruments impose restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.

23. The right to personal liberty and security similarly exhibits both comparable and distinct requirements in peacetime, states of emergency and armed conflict, as provided for under international human rights and humanitarian law. All persons falling within the authority or control of a state are entitled to the right to personal liberty and security. However, under prevailing international human rights standards, states may, under certain limited circumstances, deprive individuals of their liberty, both in relation to the investigation and punishment of crimes as well as the administration of state authority in other areas where measures of this nature are strictly necessary. This may include, for example, administrative detention for compelling reasons relating to law enforcement, health or other public purposes. These measures must, however, comply with standards as prescribed under applicable regimes of international law.

24. Outside of armed conflict situations, standards governing the right to personal liberty include ensuring that the grounds and procedures for the detention be prescribed by law, the right to be informed of the reasons for the detention, prompt access to legal counsel, family and, where necessary or applicable, medical and consular assistance, prescribed limits upon the length of continued detention, and maintenance of a central registry of detainees. The Commission also emphasizes that appropriate judicial review mechanisms must be available to supervise detentions, promptly upon arrest or detention and at reasonable intervals when detention is extended. In no circumstances may states impose prolonged incommunicado detention. Aspects of the foregoing requirements should also be considered non-derogable, because of their integral role in protecting the non-derogable rights of detainees such as the right to humane treatment and the right to a fair trial and the need to ensure that detainees or prisoner are not left completely at the mercy of those holding them.

25. Where emergency situations arise, states may be justified in derogating from certain limited aspects of the right to personal liberty and security. This may include, for example, subjecting individuals to periods of preventative or administrative detention for periods longer than would be permissible under ordinary circumstances. As with all derogations, however, any extended detention must be strictly necessary in the exigencies of the situation, must remain subject to the non-derogable protections noted above, and may in no case be indefinite.

26. Where terrorist acts may trigger or otherwise take place in the context of an armed conflict, the detailed lex specialis of presumptions and mechanisms prescribed under international humanitarian law must inform the manner in which states give effect to the right to personal liberty. In the case of international armed conflicts, privileged combatants who fall into the hands of an enemy generally may be interned until their repatriation at the cessation of active hostilities. Unprivileged combatants may also be interned and, moreover, may be subject to prosecution for their unprivileged belligerency. In either circumstance, the detention remains subject to supervision by the mechanisms prescribed under international humanitarian law, including the Protecting Powers regime under the 1949 Geneva Conventions and access by the International Committee of the Red Cross.

27. Enemy non-nationals in the territory of a party to an international armed conflict or civilians in occupied territory, on the other hand, may not be administratively detained or interned except where the security of the detaining or occupying power make it absolutely necessary. Where such detention or internment is imposed, it must be subject to reconsideration or appeal with the least possible delay and, if it is continued, subject to regular review by an appropriate or competent body, court or other tribunal designated for that purpose.

28. As in the case of the right to humane treatment, there may be circumstances in which the regulations and procedures under international humanitarian law may prove inadequate to properly safeguard the minimum human rights standards of detainees. This may occur, for example, where the continued existence of active hostilities becomes uncertain, or where a belligerent occupation continues over a prolonged period of time. As the paramount consideration must at all times remain the effective protection of the fundamental rights of detainees, the supervisory mechanisms under international human rights law or domestic law may necessarily supercede international humanitarian law in such circumstances in order to safeguard the fundamental rights of detainees.

29. Also included in the Commission’s analysis is the right to freedom of expression, which exhibits a lesser degree of convergence between international human rights and humanitarian law, but which nevertheless prescribes fundamental controls upon states’ counter-terrorism initiatives. In this connection, the Commission has emphasized the particular importance of respect for and protection of the right to freedom of expression in the Americas, as it plays a fundamental role in strengthening democracy and guaranteeing human rights by offering citizens an indispensable tool for informed participation. Further, the Commission highlights the fact that during situations of terrorist threat, an informed public can be an effective tool in monitoring and preventing abuses by public authorities.

30. Several rules and protections governing the right to freedom of expression warrant particular comment in the context of terrorism. In situations short of a state of emergency, prior censorship should not be used to prevent the circulation of ideas and information. In addition, subsequent penalties for the dissemination of opinions or information may only be imposed through laws that are clear and foreseeable and not overly broad or vague. Moreover, any subsequent penalties must be proportionate to the type of harm they are designed to prevent.

States should also refrain from promulgating laws that broadly criminalize the public defense (apologia) of terrorism or of persons who might have committed terrorist acts, without requiring a showing that such expressions were intended to incite, and were likely to produce lawless violence or other similar actions.

With respect to access to information in the hands of the government and the right of habeas data, there should be a presumption of openness, with restrictions on access only when releasing the information in question would or would be likely to cause serious prejudice to national security. States bear the burden of proof to show that such restrictions are necessary.

31. In states of emergency, the Commission observes that the right to freedom of expression is derogable for the time and to the extent strictly required by the exigencies of the situation. The Commission specifically observes in this connection that laws that impose prior censorship on the publication or dissemination of terrorist-related information or opinions may be permissible through derogation in times of emergency. States may also be justified during emergency situations in imposing additional restrictions on freedom of expression and access to information. However, the burden of proof is again on States to demonstrate that any derogations are not excessive in light of the exigencies of the situation.

32. With regard to situations of armed conflict, the Commission emphasizes in particular the obligation of parties to a conflict to afford journalists and media installations the protection to which their status under international humanitarian law entitles them, which is presumptively that of civilians and civilian objects.

33. The Commission recognizes that persons who find themselves in the territory of a state of which they are not nationals, including migrant workers, refugees and those seeking asylum from persecution, are particularly vulnerable to human rights violations in the development and execution of counter-terrorist measures.

This report therefore addresses several fundamental human rights specifically as they pertain to non-nationals in the context of anti-terrorism strategies, including the right to personal liberty and security, the right to humane treatment, the right to due process and to a fair trial, and the absolute and non-derogable prohibition against discrimination.

In order to ensure that measures adopted concerning the situation of non-nationals are not formulated or executed in a manner that transgresses these fundamental human rights, states must avoid in particular such practices as unjustified and prolonged detention, failure to inform detainees of their right to consular assistance, mass expulsions of non-nationals, and unavailable or ineffective review of judicial or administrative proceedings involving non-nationals.

The Commission has also stressed that proceedings involving the removal or deportation of such persons must properly consider and give effect to the principle of non-refoulement as reflected in such provisions as Article 33 of the UN Convention on the Status of Refugees, Article 3(1) of the UN Convention on Torture, Article 13 of the Inter-American Convention to Prevent and Punish Torture, and Article 22(8) of the American Convention on Human Rights.

34. Finally, the Commission’s analysis acknowledges that member states’ anti-terrorist initiatives may have detrimental implications for a broad range of human rights beyond those discussed above, including the rights to freedom of assembly and of association, the right to freedom of conscience and religion, the rights to property and privacy, and the right to participate in government. Accordingly, the report provides an abbreviated analysis of these rights and observes in particular that any measures taken by member states to restrict these rights must comply strictly with the procedural and substantive requirements governing restriction clauses under international human rights instruments. This requires that any restrictions be necessary for the security of all and in accordance with the just demands of a democratic society and must be the least restrictive of possible means to achieve a compelling public interest. In addition, any such restrictions must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.

35. The Commission’s report concludes with a series of specific recommendations that are intended to guide member states in implementing the rules and principles articulated in the Commission’s analysis.

As this Commission has frequently declared, international law obliges member states to take the measures necessary to prevent terrorism and other forms of violence and to guarantee the security of their populations.[6] Indeed, it cannot be ruled out that these measures may include future developments in international law that will address recent manifestations of terrorism as, for example, a new form of international warfare between private individuals or groups and states. Consistent with their obligation to eliminate terrorist violence, member states of the OAS and other intergovernmental organizations have taken numerous initiatives to respond to the threat of terrorism. States have, for example, negotiated multilateral treaties on terrorism,[7] including most recently the Inter-American Convention Against Terrorism adopted and opened for signature by the OAS General Assembly during its thirty-two regular session in June 2002.[8] States have also developed domestic laws and procedures to criminalize and prosecute terrorist activities.[9]

4. In undertaking these initiatives, however, member states are equally obliged to remain in strict compliance with their other international obligations, including those under international human rights law and international humanitarian law.[10] OAS member states have recognized this fundamental requirement in Article 15 of the Inter-American Convention against Terrorism, which provides as follows:

15.1. The measures carried out by states parties under this Convention shall take place with full respect for the rule of law, human rights and fundamental freedoms.

2. Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law. 3. Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including the enjoyment of all rights and guarantees in conformity with the law of the state on the territory of which that person is present and applicable provisions of international law.[11]

5. The Inter-American Commission, as the organ of the OAS charged with promoting the observance and protection of human rights in the Hemisphere, has in past country reports and its reports on individual cases evaluated the human rights implications of numerous anti-terrorist initiatives undertaken by OAS member states. The Commission has consistently emphasized that unqualified respect for the full scope of human rights or rights which have not been legitimately suspended under an emergency must be a fundamental part of any anti-terrorist strategies.[12] Central to this approach is recognition of the fact that efforts to oppose terrorism and the protection of human rights and democracy are not antithetical responsibilities. To the contrary, derogation clauses in international human rights instruments specifically contemplate that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary for the very purpose of protecting democratic institutions and the rule of law from terrorist and other threats, not to weaken or destroy them.

6. In order to reinforce its doctrine in this area and to assist member states in complying with their corresponding international legal obligations, the Commission decided in December 2001 to undertake a study by which it would reaffirm and elaborate upon the manner in which international human rights requirements regulate state conduct in responding to terrorist threats. The Commission pursued this project in fulfillment of its functions and powers under the OAS Charter and the Commission’s Statute, including the powers under Article 18 of its Statute:

b. to make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of those rights;

c. to prepare such studies or reports as it considers advisable for the performance of its duties.[13]

7. As described in further detail in Part II(C), the Commission has through the report and its underlying methodology endeavored to provide a timely and focused analysis of the principal human rights implications of efforts by states to respond to terrorist threats. It has done so by placing those efforts within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection.

8. In its resolution adopting and opening for signature the Inter-American Convention Against Terrorism, the OAS General Assembly proclaimed that “the fight against terrorism must be undertaken with full respect for national and international law, human rights, and democratic institutions, in order to preserve the rule of law, liberties and democratic values in the Hemisphere, which are essential components of a successful fight against terrorism.”[14] The Commission is hopeful that the results of its study will assist OAS member states and other interested actors in the inter-American system in fulfilling this crucial responsibility.

B. Terrorism in the Context of International Law

9. Before undertaking a detailed analysis of the implications of terrorist violence for the human rights obligations of states in the inter-American system, it is first necessary to articulate the Commission’s understanding of the meaning and role of terrorism within the broader regime of international law.

10. Terrorism[15] is far from a new phenomenon; indeed it may even be said to antedate recorded history.[16] Its treatment as a subject of international law is of more recent origin. Among the earliest efforts to address terrorism as a matter of legal concern to the international community was the drafting by the League of Nations of the 1937 Geneva Convention for the Prevention and Punishment of Terrorism drafted by the League of Nations, which never entered into force.[17] The United Nations subsequently took up similar anti-terrorism initiatives through the negotiation of multilateral treaties[18] and the work of bodies at various levels of the Organization.[19]

11. Member states and organs of regional international organizations have likewise endeavored to address manifestations of terrorism in their respective jurisdictions through the negotiation of multilateral conventions and other measures. These organizations have included the Council of Europe,[20] the European Union,[21] the Organization for Security and Cooperation in Europe,[22] the African Union,[23] and the Organization of American States.

In the inter-American system in particular, notable anti-terrorist initiatives efforts have included the promulgation of the 1977 Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance,[24] the on going work of the Inter-American Committee against Terrorism,[25] and the recently adopted Inter-American Convention Against Terrorism.[26] Owing in part to the considerable impact of terrorism upon the protection of human rights and democracy in the Americas, the Inter-American Commission on Human Rights has for much of its history considered the problem of terrorist violence as a part of its mandate to promote the observance and protection of human rights in the Hemisphere.[27] These efforts within the inter-American system in turn have produced a considerable body of instruments and jurisprudence from which the Commission may draw for the purposes of this study.

12. In attempting to address the concept of terrorism within the framework of international law, it should first be recognized that the language of terrorism is used in a variety of contexts and with varying levels of formality to characterize:

• actions, including forms of violence such as highjacking or kidnapping
• actors, including persons or organizations
• causes or struggles, where the cause or struggle may be so marked by terrorist violence as to be indistinguishable from it, or where a movement may commit isolated terrorist acts or engage in terrorist strategies. It is largely in this respect that international disagreement on a comprehensive definition of terrorism has arisen, where certain states have considered that what are often referred to as “national liberation movements” and their methodologies should by reason of their association with the principle of self-determination of peoples be excluded from any definition of terrorism[28]
• situations, where terrorist violence is a particularly serious or widespread problem in a state or region
• armed conflicts, in the sense, for example, of the labeled post-September 11, 2001 “war on terrorism”

13. In connection with the final characterization above, terrorist attacks such as those occurring on September 11, 2001 in the United States suggest that assumptions regarding the characteristics of modern terrorism must be re-evaluated, to acknowledge that terrorist groups, apparently with the support or acquiescence of certain states, have gained access to financial and technological resources that permit them to operate multinationally and to perpetrate acts of mass destruction on an unprecedented scale. These developments have been coupled with an evolution in the objectives of these same groups to destroy particular societies at an international level.[29]

14. In this context, it cannot be ruled out that these new manifestations of terrorist violence may lead to future developments in international law. The international community may, for example, regard these forms of terrorism as giving rise to a new type of “terrorist war” and, correspondingly, develop international humanitarian law conventions to address armed conflicts waged internationally between states and non-state actors. Debates have also materialized concerning the permissibility under international law of “pre-emptive” military attacks as a defense against potential terrorist threats.[30] While the Commission will closely follow and, consistent with its mandate, may play a role in defining any future direction that international law may take in these respects, it will not speculate on such developments for the purposes of this report. Rather, the Commission will consider member states’ international legal obligations as presently constituted. As reflected in Article 15 of the Inter-American Convention against Terrorism, these include the requirements of international human rights, humanitarian, and refugee law which, as noted above, expressly contemplate the need to take exceptional measures in certain situations to protect human rights and democratic governance.

15. In defining the parameters of member states’ obligations under current international law, it must also be recognized that to-date there has been no consensus on a comprehensive international legal definition of terrorism.[31] At best, as reflected in Article 2 of the Inter-American Convention against Terrorism,[32] it may be said that the international community has identified certain acts of violence that are generally considered to constitute particular forms of terrorism. These include, for example, the taking of hostages,[33] the seizure and destruction of civilian aircraft,[34] attacks against the life, physical integrity or liberty of internationally protected persons including diplomatic agents,[35] and, in the context of armed conflicts, acts or threats of violence the primary purpose of which is to spread terror among the civilian population.[36]

16. The absence of agreement on a comprehensive definition of terrorism under international law suggests in turn that the characterization of an act or situation as one of terrorism cannot in and of itself serve as a basis for defining the international legal obligations of states. Rather, each such act or situation must be evaluated on its own facts and in its particular context to determine whether and in what manner contemporary international law may regulate the responding conduct of states.[37]

17. At the same time, the fact that terrorism per se may not have a specific meaning under international law does not mean that terrorism is an indescribable form of violence or that states are not subject to restrictions under international law when developing their responses to such violence. To the contrary, it is possible to identify several characteristics frequently associated with incidents of terrorism that provide sufficient parameters within which states’ international legal obligations in responding to terrorist violence may be identified and evaluated. The United Nations General Assembly, for example, has developed a working definition of terrorism for the purposes of its various resolutions and declarations on measures to eliminate terrorism, namely “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes [which] are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be used to justify them.”[38]

These and other authorities suggest that characteristics common to incidents of terrorism may be described in terms of: (a) the nature and identity of the perpetrators of terrorism; (b) the nature and identity of the victims of terrorism; (c) the objectives of terrorism; and (d) the means employed to perpetrate terror violence.[39] More specifically:

(a) the perpetrators or instigators of terrorism may be comprised of states as well as private individuals or groups who may act independently or with the direct or indirect support of states.[40] “State terrorism” has a notable history in the Americas where many governments have engaged in kidnappings, forced disappearances and other egregious human rights violations against their own populations, often under the guise of fighting terrorism;[41]

(b) the targets of terrorist violence have also varied to include persons, institutions and property.[42] Commentators have observed, however, that the victims of terrorism have predominantly remained human ones, due in part to the strength that terrorism draws from the intrinsic value of human life and the psychological stress and fear created when human lives are jeopardized.[43] Similarly, terrorism has tended to take advantage of the sources of strength in democratic communities, such as open societies, constitutional safeguards and a science-based and technological civilization, as vulnerable targets and as a source of the very weapons used to attack those communities. “Terrorism,” as one commentator has observed, “has never had a chance in an effective dictatorship, but hardly a major democratic society has entirely escaped it.”[44]

(c) the motivations driving the perpetrators of terrorism tend to be ideological or political in nature;[45]

(d) concerning the means of perpetrating terrorism, terrorist violence may occur at a domestic or international level and has most often been perpetrated through the use of conventional weapons, although the possible use of weapons of mass destruction by terrorists is an ever-increasing matter of concern to the international community.[46] Further, terrorist incidents, whether perpetrated on a recurring or sporadic basis, are inevitably clandestine and unpredictable; the exploitation of fear and terror, the resulting intimidation and subversion of public order, and the publicity generated by these techniques, have traditionally constituted central tools of terrorist violence.[47] Distinguishing characteristics of terrorist methodology have also generally included a willingness in the part on its perpetrators to take risks and make personal sacrifices for their cause to a greater extent than common criminals.[48]

18. In light of the general characteristics of terrorist violence and their changeable nature, as described above, it is apparent that the obligations of states in responding to such violence do not exist in a void. Rather, as properly recognized in Article 15 of the Inter-American Convention against Terrorism, states’ reactions to terrorism may be regulated, independently or concurrently, by several regimes of international law, including international human rights law and international humanitarian law. As discussed in further detail in Part II, this in turn is dependent upon whether the nature and degree of terrorist violence triggers or otherwise occurs in the context of

• a situation of peace, where international human rights law is fully applicable

• an emergency that threatens the independence or security of a state, in which case international human rights law applies subject to any permissible derogations based strictly on the exigencies of the situation, or

• an armed conflict, where both international human rights law and international humanitarian law apply coextensively but where states’ human rights obligations may have to be interpreted in light of international humanitarian law as the applicable lex specialis.

19. The detailed interrelationship between these regimes of law in the context of particular rights is the subject of further discussion in the substance of this report. At this stage, however, it should be recognized that the classification of an act or situation as one of terrorism in and of itself does not affect the application of a regime of international law where, in the circumstance, the conditions for the application of that regime are satisfied. The significance of this caveat is most clearly illustrated by the manifestation of terrorist violence in the context of an international armed conflict.

20. For example, where a situation of hostilities is considered to constitute an international armed conflict and the armed forces of one of the parties to the conflict satisfy the requirements for prisoner of war status under Article 4 of the Third Geneva Convention, or Articles 43 to 45 of Additional Protocol I in the case of states parties to that instrument,[49] the fact that members of those forces may have engaged in acts of terrorism in the course of hostilities does not alter the continued application of international humanitarian law to the conflict or the entitlement of those members to the protections of the Third Geneva Convention or Additional Protocol I where applicable.[50]

At the same time, those members may be prosecuted and found individually criminally responsible for terrorist acts to the extent that those acts may constitute grave breaches of the 1949 Geneva Conventions or of Additional Protocol I where applicable, or other serious violations of international humanitarian law.[51] Similarly, where combatants in an international armed conflict fail to satisfy the requirements of prisoner of war status and are therefore not entitled to the protections under Third Geneva Convention , they will remain the beneficiaries of the minimum customary standards of treatment set forth in common Article 3 and Article 75 of Additional Protocol I notwithstanding the fact that those combatants may have participated in acts of terrorism in the course of hostilities.

21. Also pertinent to the Commission’s analysis are the characteristics of initiatives frequently taken by states to respond to terrorist violence. As confirmed by the information submitted by member states in relation to this study, states have endeavored to adapt existing law enforcement mechanisms, and develop new mechanisms, to investigate, suppress and punish terrorism, on a domestic level and internationally.[52] These efforts have included enhanced implementation of extradition, mutual legal assistance, information sharing and other forms of inter-state cooperation in criminal matters,[53] more rigorous enforcement of measures to exclude, remove or extradite aliens suspected of participation in terrorist activities,[54] the criminalization of terrorist-related activities and detention, prosecution, and punishment of persons suspected of having committed those crimes,[55] the freezing of financial and other assets used in the furtherance of terrorist activity,[56] undertaking police or military operations against terrorist groups, within a state’s territory or in the territory of another state affiliated with such groups,[57] and negotiating treaties that prescribe bilateral and multilateral anti-terrorist cooperative measures.[58]

 Particularly significant for the effective execution of many of these methods of inter-state cooperation is the explicit stipulation in certain international anti-terrorism instruments that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation.[59]

22. Efforts of the nature described above may in principle be considered to coincide with the long-recognized obligation of member states to take the measures necessary to prevent acts of terrorism and violence and to guarantee the security of their populations,[60] which includes the duty to investigate, prosecute and punish acts of violence or terrorism.[61] At the same time, the Commission cannot overemphasize the overriding requirement that any counter-terrorism initiatives by states comply with their existing obligations under international law, including those under international human rights and humanitarian law. As the Commission has previously observed, “unqualified respect for human rights must be a fundamental part of any anti-subversive strategies when such strategies have to be implemented.”[62]

This in turn entails respect for the full scope of human rights or rights that have not been legitimately suspended under an emergency. Not only is a commitment to this approach dictated as a matter of principle, namely to respect the very values of democracy and the rule of law that counter-terrorism efforts are intended to preserve, it is also mandated by the international instruments to which states are legally bound, including the American Declaration of the Rights and Duties of Man,[63] the American Convention on Human Rights,[64] the Universal Declaration of Human Rights,[65] the International Covenant on Civil and Political Rights,[66] and the 1949 Geneva Conventions,[67] the 1977 Additional Protocols thereto,[68] and other pertinent international humanitarian law instruments and corresponding norms of customary law.

These international legal obligations create no general exception for terrorism in their application, but rather establish an interrelated and mutually reinforcing regime of human rights protections with which states’ responses to terrorism must conform.[69] In this respect, the campaign against terrorism and the protection of human rights should not be regarded as antithetical responsibilities; to the contrary, derogation clauses in international human rights instruments clearly recognize that exceptional measures requiring the temporary suspension of some rights may sometimes be necessary in responding to threats for the very purpose of protecting democratic institutions and the rule of law, not to weaken or destroy them. This doctrinal approach has been particularly significant in the Americas, where the instigators and perpetrators of terrorism have frequently sought to undermine not only the human rights of civilian populations but the democratic systems of government upon which the protection of those rights fundamentally depend.

23. Through this report, the Commission will attempt to articulate in further detail the manner in which the human rights obligations of OAS member states should inform their responses to threats of terrorist violence.

C. Methodology

24. The Inter-American Commission announced its decision to undertake the present study on terrorism and human rights in a resolution adopted on December 12, 2001.[70] In declaring its intention to examine this topic, the Commission placed the pressing problem of terrorism in the context of OAS member states’ correlative obligations to protect the Hemisphere’s population against violence of this nature, and to ensure that their efforts in this regard conform with international law. Accordingly, the Commission’s study was conceived as an opportunity to assist states in adopting anti-terrorism measures that accord with their international human rights commitments. To this end, the Commission has in this report addressed the minimum requirements of international human rights and humanitarian law in respect of several fundamental human rights, and to evaluate the manner in which these requirements may impact upon a variety of anti-terrorism practices.

25. Following the release of its resolution on terrorism, the Commission decided to convene a panel of international experts during its 114th regular period of sessions at its Headquarters in Washington, D.C., in order to obtain timely information on the issue of terrorism and human rights from a variety of specialized perspectives. On March 11, 2002 at the Commission’s invitation, five experts, Aryeh Neier, President of the Open Society Institute, Dr. Jorge Santistevan, former Defensor del Pueblo of Peru, Yale and Johns Hopkins University Law Professor Ruth Wedgwood, University of Washington Law Professor Joan Fitzpatrick, and University of Virginia Law Professor David Martin, attended before the Commission and provided extensive and insightful oral and written presentations on various aspects of the issue. Topics of discussion included the propriety of using military commissions to try terrorism-related offenses, the conditions under which persons may be the subject of administrative detention for immigration and related reasons, and the possible role of international humanitarian law in regulating state responses to terrorist attacks.

26. To supplement the information gained through the experts hearing and to provide the Commission with the broadest input possible, the Commission, by notes transmitted in March and April 2002, invited each of the member states of the Organization of American States as well as several pertinent non-governmental organizations to submit in writing any general or specific observations that they may have on the subject matter of the Commission’s study. The Commission received a considerable number of responses to its invitations, including communications from the Governments of Venezuela, Panama, Argentina, Brazil, Colombia, Mexico, and the Commonwealth of Dominica as well as observations from various non-governmental organizations including London-based Interights, the Center for Constitutional Rights in New York, and Columbia Law School’s Human Rights Institute. The Commission also received information from other international institutions, including the International Commission of Jurists and the Office of the United Nations High Commissioner for Refugees, and drew upon pertinent material otherwise available in the public domain.

27. In the course of its study, the Commission took particular notice of the comprehensive draft conventions on terrorism prepared under the auspices of the United Nations and the Organization of American States, the negotiation of which coincided with the Commission’s initiative. These conventions, the latter of which was ultimately adopted by the OAS General Assembly and opened for signature and ratification on June 2, 2002 during its thirty-second regular session and which are discussed in further detail in Part II(A), signify the cooperative attitude among many states to confront terrorism. These instruments also illustrate several of the methods likely to be adopted by states in pursuing this objective and that may have implications for the protection of human rights. In this regard, the Commission noted with approval the prominent role that recognition of compliance with member states’ human rights and other existing international agreements played in the negotiation and final text of the OAS convention. As noted above, Article 15 of the Inter-American Convention Against Terrorism requires, inter alia, that measures carried out by states parties under the Convention must take place with full respect for the rule of law, human rights and fundamental freedoms and that “[n]othing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law.”[71] Also as observed above, ensuring compliance with existing international human rights and humanitarian law commitments in the campaign against terrorism is dictated both as a matter of principle, and in the terms of the international instruments by which states are legally bound.[72]

28. In evaluating the information received in the course of its study, the Commission considered that a rights-based methodology provided the most effective structure for its analysis. Under this approach, the implications of counter-terrorism initiatives are examined within the established framework of several core international human rights, in particular the right to life, the right to humane treatment, the right to personal liberty and security, the right to a fair trial, the right to freedom of expression and the right to judicial protection, as well as a variety of other potentially significant freedoms. In light of the fact that the circumstances surrounding instances of terrorism can, as noted above, involve a variety of perpetrators, victims, motivations and methodologies, the Commission considered it necessary to address the framework of these core rights in light of international human rights law and international humanitarian law.

29. The Commission wishes to remark briefly upon its use of international humanitarian law in the analysis of each of the rights under discussion. As explained in further detail in Part II(C), there may be occasions in which terrorist acts are perpetrated in the context of an existing armed conflict or where the nature and degree of violence generated by terrorist situations itself triggers the application of the law of armed conflict. Consistent with established international legal doctrine in this area, where situations of armed conflict may be concerned, international human rights law is in no way displaced by the law of armed conflict or any other regime of international law. Rather, human rights law continues to apply except to the extent that it may properly be made the subject of derogations. In interpreting and applying human rights protections in such circumstances, however, it may be necessary for the Commission to refer to and consider pertinent provisions of international humanitarian law as the applicable lex specialis.[73] This methodology is particularly significant where situations of international armed conflict are concerned, as the four Geneva Conventions of 1949 and other applicable instruments prescribe extensive and specific rules and standards concerning the protection of victims of armed conflict and must be considered in order to properly interpret and apply international human rights protections during these armed conflicts. Consistent with this approach, the Commission has integrated into its analysis of the various rights under discussion consideration of the manner in which applicable norms of international humanitarian law may affect state’s obligations in undertaking counter-terrorism initiatives.

30. The Commission would like to express its gratitude for the generous participation and input on the part of the experts, member states and organizations who contributed time and observations to this study.

These provisions include articles that define particular acts of terrorism as criminal offenses for the purposes of the treaties,[79] oblige states parties to make the offenses punishable by appropriate penalties under their domestic law, [80] and require states parties to establish their jurisdiction over offenses and suspected offenders in particular cases and to prosecute or extradite alleged offenders.[81] Also included in anti-terrorism instruments are provisions that require states parties to cooperate in preventing terrorist offenses and to provide mutual legal assistance in criminal proceedings relating to crimes of terrorism,[82] that require terrorist offenses to be included as extraditable offenses in any extradition treaties between states parties,[83] and that oblige states parties not to regard certain terrorist offenses as political offenses, as offenses connected with a political offense or as offenses inspired by political motives for the purposes of extradition.[84] It is notable in this respect that the provisions of this body of law that require states parties to investigate, prosecute and punish terrorist crimes coincide with the doctrine under international human rights law according to which states are obliged to investigate the acts and punish those responsible whenever there has been a violation of human rights.[85]

34. In addition to treaties that address particular manifestations of terrorism, the international community has endeavored to develop treaties that address terrorism on a more inclusive basis. These efforts have included negotiations at the United Nations for a comprehensive convention on international terrorism. Responsibility for elaborating this convention has been assigned to the UN General Assembly’s Ad Hoc Committee on Terrorism[86] as well as a Working Group of the General Assembly’s Sixth Committee.[87] According to the most recent draft treaty available,[88] the Convention includes articles similar to those found in the more specific treaties discussed above addressing, for example, the investigation and prosecution or extradition of alleged offenders and mutual legal assistance between states in criminal proceedings involving terrorist crimes. More controversially, the draft convention endeavors to provide a comprehensive definition of terrorism, which has not yet reached agreement among states.[89] The relationship between the comprehensive convention and more specific treaties on terrorism has also been the subject of continuing debate, with some states contending that the treaty should add to the existing conventions while others have asserted that it should be more of an umbrella convention.[90] As of this writing, the draft convention has remained under consideration by the General Assembly’s Ad Hoc Committee and by the Working Group of the Sixth Committee.[91]

35. Similar initiatives to develop comprehensive terrorism conventions have been pursued at the regional level.[92] As emphasized by member states in their responses to the Commission’s invitation to submit information on the present study, these efforts have included the Inter-American Convention Against Terrorism, which was approved and opened for signature by the OAS General Assembly on June 3, 2002 with the stated object and purpose of preventing, punishing and eliminating terrorism.[93] As of this writing, the Convention has been signed by 32 member states but has yet to be ratified by any governments.[94] Many of the provisions of the Inter-American Convention against Terrorism are similar to those under other anti-terrorism treaties.

These include, for example, articles that oblige states parties to afford one another mutual legal assistance, including cooperation among law enforcement authorities, with respect to the prevention, investigation and prosecution of the offenses addressed by the treaty.[95] It also renders the political offense exception inapplicable to crimes under the treaty and requires member states to ensure that refugee status is not granted to any person in respect of whom there are serious reasons for considering that he or she has committed such a crime.[96] Unlike the UN terrorism convention, however, the OAS treaty refrains from providing a comprehensive definition of terrorism, but rather incorporates the crimes prescribed by ten existing international treaties on terrorism.[97] The Convention also contains extensive provisions addressing the prevention, combating and eradication of the financing of terrorism by, for example, requiring states parties to “institute a comprehensive regulatory and supervisory regime for banks, other financial institutions, and other entities deemed particularly susceptible to being used for the financing of terrorist activities.”[98] It similarly addresses the seizure and confiscation of funds or other assets constituting the proceeds of, used to facilitate, or used or intended to finance, the commission of any of the offenses under the Convention.[99] And as noted previously, pursuant to Article 15 all of the measures under the treaty are subject to the requirement of respect for the rule of law, human rights and fundamental freedoms.[100]

36. Elements of the international law of terrorism described above are discussed in greater detail in the substantive analysis of rights and freedoms contained in this report. It may be noted at this stage, however, that particular regard must be paid to fundamental human rights in the interpretation and application of certain treaty provisions. This includes, for example, implications of the right to personal liberty and security, the right to due process, and the non-refoulement principle for the apprehension, detention and prosecution or extradition of suspected terrorists, as well as the impact of the rights to property and privacy upon the investigation, seizure and confiscation of property allegedly used for terrorist purposes.

B. International Human Rights Law

37. Within the inter-American system, the human rights obligations of member states of the Organization of American States flow from several sources.

38. By virtue of their ratification of the OAS Charter, all member states are bound by the human rights obligations incorporated in that instrument, which the political[101] and human rights[102] organs of the Organization have recognized are contained in and defined by the American Declaration of the Rights and Duties of Man. Significant aspects of the American Declaration may also be considered to reflect norms of customary international law.[103] On the basis of treaty and custom, therefore, the American Declaration constitutes a source of legal obligation for all OAS member states, including in particular those states that have not ratified the American Convention on Human Rights.[104]

39. Member states that have ratified the American Convention on Human Rights explicitly undertake pursuant to Articles 1(1) and 2 of that instrument to respect the rights and freedoms recognized in the Convention, and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. They also agree to adopt, in accordance with their constitutional processes and the provisions of the Convention such legislative or other measures as may be necessary to give effect to the rights or freedoms where the exercise of those rights or freedoms is not already ensured by legislative or other provisions.

40. Numerous additional treaties have supplemented and expanded upon the rights contained in these two principal instruments and constitute additional international obligations for member states that have ratified or acceded to their terms. These agreements include the Inter-American Convention to Prevent and Punish Torture,[105] the Inter-American Convention on Forced Disappearance of Persons,[106] the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention of Belém do Pará”),[107] and the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (“Protocol of San Salvador”).[108]

41. The Commission also observes that these instruments must be interpreted and applied in light of several well-established rules and principles governing international legal obligations generally, and human rights obligations in particular, as outlined below.

42. As with all international obligations, a state’s human rights obligations are superior to the requirements of its domestic law and must be performed in good faith. Accordingly, states cannot invoke their contrary domestic law as an excuse for non-compliance with international law.[109] It is also well recognized that the international human rights commitments of states apply at all times, whether in situations of peace or situations of war. This precept flows from the jurisprudence of this Commission[110] and other pertinent international authorities[111] as well as the terms of human rights instruments themselves.[112]

43. A state’s human rights obligations have also been recognized as distinct from its other international commitments, because states are, through their international human rights commitments, deemed to submit themselves to a legal order within which they assume various obligations, not in relation to other states parties, but toward all individuals within their jurisdiction. Accordingly, human rights instruments are to be interpreted in light of an object and purpose consistent with their fundamental nature, namely the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and against all other contracting states.[113]

44. Consistent with this approach, a state’s human rights obligations are not dependent upon a person’s nationality or presence within a particular geographic area, but rather extend to all persons subject to that state’s authority and control.[114] This basic precept in turn is based upon the fundamental premise that human rights protections are derived from the attributes of an individual’s personality and by virtue of the fact that he or she is a human being, and not because he or she is the citizen of a particular state. This principle is explicitly recognized in the preambles to both the American Declaration and the American Convention[115] and is also recognized in other provisions of these instruments, including those which guarantee all persons the rights under those instruments without any discrimination for reasons of sex, language, creed or any other factor, including national or social origin,[116] and the right to recognition as a person before the law.[117]

45. When interpreting and applying the provisions of inter-American human rights instruments, it is both appropriate and necessary to take into account member states’ obligations under other human rights and humanitarian law treaties, which together create an interrelated and mutually reinforcing regime of human rights protections. These treaties include, but are not limited to, the Universal Declaration of Human Rights,[118] the International Covenant on Civil and Political Rights,[119] the UN Convention relating to the Status of Refugees[120] and its 1967 Additional Protocol,[121] the UN Convention on the Rights of the Child,[122] the International Convention on the Elimination of all Forms of Racial Discrimination,[123] the Vienna Convention on Consular Relations,[124] the 1949 Geneva Conventions,[125] and the 1977 Additional Protocols thereto.[126] Under this interconnected regime of treaty obligations, one instrument may not be used as a basis for denying or limiting other favorable or more extensive human rights that individuals might otherwise be entitled to under international or domestic law or practice.[127] A chart stipulating OAS member states that have at present signed,[128] ratified or acceded to each of the foregoing instruments has been included as Annex “II” to this report.

46. Moreover, these treaties, together with the instruments and jurisprudence of other international human rights systems, reflect and form part of developments in the corpus of international human rights law more broadly that are properly taken into account in evaluating states’ human rights obligations in the inter-American system. As the Inter-American Court has proclaimed, the provisions of the inter-American instruments must be interpreted in the context of developments in the field of international human rights law since those instruments were first composed and with due regard to other relevant rules of international law applicable to member states.[129] These developments may in turn be drawn from the provisions of other prevailing international and regional human rights instruments as informed by relevant principles and customary rules of international law.[130]

47. It is also pertinent to observe that the human rights framework established by member states of the OAS is one that speaks generally to the obligations and responsibilities of states,[131] which are obliged to refrain from supporting, tolerating or otherwise acquiescing in acts or omissions that fail to conform with their international human rights commitments.[132] Consistent with this premise, the Commission's mandate is to promote the observance and protection of human rights by states and their agents rather than non-state actors.[133]

48. This does not mean, however, that the conduct of non-state actors, including terrorists and terrorist groups, bears no relevance to the evaluation of states’ obligations concerning human rights protections in the Hemisphere. Throughout its history, the Commission has, for example, referenced the atrocities committed by armed dissident groups in its press releases, in communications with governments, and in its reports on the situation of human rights in the various member states of the OAS.[134] The Commission has considered violence of this nature to constitute a relevant component of the environment in which states’ general compliance with human rights standards must be evaluated, and as a justification that may potentially be invoked by states as grounds for temporarily suspending the exercise of certain rights.[135]

49. This in turn raises the issue of derogation from rights protected under the inter-American human rights instruments. As noted above, the fundamental human rights protection of persons apply at all times, in peace, during emergency situations, and in war.[136] Nevertheless, the American Convention, like other international human rights instruments,[137] permits states to take measures derogating from certain treaty protections under narrowly-prescribed situations of emergency. Article 27 of the Convention provides in this regard as follows:

Article 27

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.[138]

50. While the American Declaration does not explicitly contemplate the possibility of restricting or suspending the rights prescribed thereunder, the Commission has considered that the derogation criteria derived from the American Convention on Human Rights embody the Hemisphere’s deliberations on the issue and are properly considered and applied in the context of the Declaration.[139]

51. According to the doctrine of the inter-American human rights system, the ability of states to take measures derogating from protections under the human rights instruments to which they are bound is strictly governed by several conditions, which are in turn broadly regulated by the generally recognized principles of proportionality, necessity and nondiscrimination:[140]

• In order to consider that there is an emergency justifying suspension of rights, there must be an extremely grave situation of such a nature that there is a real threat to law and order or the security of the state, including an armed conflict, public danger, or other emergency that imperils the public order or security of a member state;[141]

• Any suspension may only be for such time as is strictly required by the exigencies of the situation and may not be proclaimed for indefinite or prolonged periods;[142]

• Any suspension may only be effectuated to the extent strictly required by the exigencies of the situation, and thereby precludes the unnecessary suspension of rights, the imposition of restrictions more severe than necessary, or the unnecessary extension of suspension to regions or areas not affected by the emergency;[143]

• Any suspension of rights cannot entail discrimination of any kind on such grounds as race, color, sex, language, religion or social origin;[144]

• Any suspension must be compatible with all of a member state’s other obligations under international law;[145]

• The declaration of a state of a state of emergency must be notified to the members states of the OAS with sufficient information that others may determine the nature of the emergency, whether the measures are strictly required by the exigencies of the situation, and whether they might be discriminatory or inconsistent with the state’s other obligations under international law.[146]

52. It must also be considered, however, that certain rights can never be the subject of derogation. The implications of this restriction in the context of particular rights will be explored in further detail in Part III of this Report. It may be observed at this stage, however, that Article 27(2) of the American Convention enumerates all of the rights that may not be the subject of derogation, namely the right to juridical personality, the right to life, the right to humane treatment, the prohibition of slavery and servitude, the principle of non-retroactivity of laws, freedom of conscience and religion, protection of the family, right to a name, rights of the child, right to nationality, and the right to participate in government, as well as the “judicial guarantees essential for the protection of such rights.” In accordance with the latter qualification and the jurisprudence of the Inter-American Court of Human Rights, non-derogable rights within the inter-American system also include the rule of law, the principle of legality, and habeas corpus and amparo remedies, which have been held to constitute judicial guarantees essential for the protection of rights that are non-derogable.[147] Derogable rights, in the other hand, include the right to privacy, the right to freedom of expression, the right of assembly, the right to freedom of association, the right to property, and the right to freedom of movement and residence. They also include derogable aspects of the right to personal liberty and the right to a fair trial, as discussed in further detail below.

53. In addition to the rules governing derogation from rights, it is apparent that certain rights protected under the inter-American human rights instruments may properly be the subject of certain restrictions that are specifically provided for in the provisions protecting these rights. These restrictions, described generally as those “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others,” are found in the provisions of the American Convention governing the right to freedom of conscience and religion,[148] the right to freedom of thought and expression,[149] and the right freedom of association.[150] While these restriction provisions are distinct in several fundamental respects from derogation clauses,[151] they are, like derogation provisions, governed by specific requirements that are the subject of strict and rigorous review by the supervisory bodies of the inter-American system.[152] They must also be interpreted in light of the general terms of Article 30 of the American Convention, and the corresponding stipulations under Article XXVIII of the American Declaration,[153] according to which the “restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purposes for which such restrictions have been established.”

54. According to inter-American jurisprudence, in determining the legitimacy of restrictions of this nature and, hence, in judging whether such provisions have been violated, it is necessary to decide on a case by case basis whether the specific terms of restrictions or limitations have been respected.[154] These terms provide both procedural and substantive requirements for the proper imposition of restrictions or limitations on particular human rights.[155] The procedural requirements mandate that any action that affects rights must be prescribed by law passed by the legislature and in compliance with the internal legal order and cannot be subject to the discretion of a government or its officials.[156]

55. The substantive requirements provide that any restrictions must be necessary for the security of all and in accordance with the just demands of a democratic society, and that their application be proportionate and closely tailored to the legitimate objective necessitating them.[157] The Inter-American Court has suggested in this respect that both public order and general welfare may properly be considered in evaluating limitations upon rights of the above nature. Public order[158] in turn refers to the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles, while the concept of general welfare within the framework of the American Convention refers to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values.[159] When these concepts are invoked as grounds for limiting human rights, however, they must be subjected to an interpretation that is strictly limited to the just demands of a democratic society, which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.[160]

56. As will be expanded upon in the remainder of this report, it is clear that the human rights protections of the inter-American system are pertinent to member states’ initiatives to respond to terrorism in several respects: they constitute international legal obligations that are binding on member states at all times, whether in times or war or other emergency or in times of peace; certain situations of terrorism might conceivably provide conditions under which member states may properly restrict or derogate from certain rights; and certain rights, including the right to life, the right to humane treatment and the fundamental components of the right to due process and a fair trial, may never properly be the subject of restriction or derogation under any circumstances. As specified previously, this latter restriction arises from the explicit terms of the applicable human rights instruments, as well as the mutually reinforcing interrelationship between states’ various domestic and international human rights obligations, according to which restrictions and derogations authorized under one instrument or law cannot be used to legalize or justify otherwise impermissible restrictions on or derogations from human rights under another instrument or law.[161]

57. To the extent that terrorist or counter-terrorist actions may give rise to or occur in the context of the use of armed force between states or armed violence between governmental authorities and organized armed groups or between such groups within a state, as described in further detail below, they may implicate the possible application of rules of international humanitarian law in evaluating states’ human rights obligations. This section provides for an introduction to humanitarian law, its scope of application and its basic rules as they presently exist. As observed in the introduction to this report, however, it cannot be ruled out that new manifestations of terrorist violence such as those perpetrated in the United States on September 11, 2001 may lead to future developments in international humanitarian law.

58. International humanitarian law is a branch of international law that applies in situations of armed conflict and which principally regulates and restrains the conduct of warfare or the use of violence so as to diminish its effects on the victims of the hostilities. The victims of armed conflict who are afforded this protection include civilians, prisoners of war, and any other members of armed forces placed hors de combat by sickness, wounds, detention or any other cause and who have fallen into the hands of an adverse party.[162]

59. International humanitarian law is applicable during armed conflicts, that is to say whenever there is a resort to armed force between states or low intensity and armed confrontations between State authorities and organized armed groups or between such groups within a State.[163] In this respect, armed conflicts may be of an international or non-international nature, which in turn affects the specific international rules that apply to a conflict. In particular, as will be discussed throughout this report, situations of international armed conflict trigger an extensive and specialized regime of rules and regulations under the 1949 Geneva Conventions and related instruments that impact upon the manner in which international human rights law may be considered to apply to the victims of such conflicts, including prisoners of war, unprivileged combatants and civilians. For their part, internal armed conflicts must also be distinguished from situations of internal tensions and disturbances, such as demonstrations without a concerted plan from the outset or isolated sporadic acts of violence,[164] which are not presently governed by international humanitarian law but rather are covered by universal and regional human rights instruments.[165] In all cases, the determination as to the existence and nature of an armed conflict is an objective one, based upon the nature and degree of hostilities, irrespective of the purpose or motivation underlying the conflict[166] or the qualification by Parties to the conflict.[167]

60. Temporally and geographically, international humanitarian law applies “from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.”[168]

61. In situations of armed conflict, both international human rights law and international humanitarian law apply.[169] Nevertheless, the American Convention and other universal and regional human rights instruments were not designed specifically to regulate armed conflict situations and do not contain specific rules governing the use of force and the means and methods of warfare in that context. Accordingly, in situations of armed conflict, international humanitarian law may serve as lex specialis in interpreting and applying international human rights instruments.[170] For example, both Article 4 of the American Convention and humanitarian law applicable to armed conflicts protect the right to life and, thus, prohibit summary executions in all circumstances. However, reference to Article 4 of the Convention alone may be insufficient to assess whether, in situations of armed conflicts, the right to life has been infringed. This is in part because the Convention is devoid of rules that either define or distinguish civilians from combatants and other military targets. Nor does the Convention specify the circumstances under which it is not illegal, in the context of an armed conflict, to attack a combatant or civilian or when civilian casualties as a consequence of military operations do not imply a violation of international law. Consequently, in such circumstances, one must necessarily look to and apply definitional standards and relevant rules of international humanitarian law as sources of authoritative guidance in the assessment of the respect of the inter-American Instruments in combat situations.[171]

62. It is therefore appropriate, and indeed imperative, for the Commission to consider all relevant international norms, including those of international humanitarian law, while interpreting the international human rights law instruments for which it is responsible.[172] International humanitarian law is also pertinent to the Commission’s interpretation of and application of human rights protection to the extent that, as described previously, states’ treaty obligations in these regimes of international law prescribe interrelated and mutually reinforcing standards of protection.[173]

63. The principal sources of international humanitarian law are the four Geneva Conventions of 1949,[174] their Additional Protocols I[175] and II[176] of 1977, the Hague Conventions of 1899 and 1907 and associated regulations,[177] and the customary laws of war. Most of the provisions of the Hague Conventions,[178] the 1949 Geneva Conventions,[179] and Additional Protocol I,[180] are applicable in international armed conflicts or belligerent occupations, defined as cases of declared war or of any other armed conflict which may arise between two states, even if the state of war is not recognized by one of them, cases of partial or total occupation of the territory of a state by another, even if the said occupation meets with no armed resistance,[181] and, in the case of Additional Protocol I, armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.[182] Article 3 common to the Four Geneva Conventions, on the other hand, was developed to apply to armed conflicts which are not of an international character[183] and has subsequently been interpreted as constituting the minimum standards of international humanitarian law applicable in all armed conflicts.[184]

Additional Protocol II,[185] which develops and supplements many of the protections contained in common Article 3, is specifically applicable in a more narrowly defined category of internal armed conflicts, namely those which take place in the territory of a state between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement international humanitarian law.[186]

Notwithstanding the narrower application of Additional Protocol II, however, certain of its provisions, including the fundamental guarantees under Articles 4, 5 and 6, are considered to develop protections prescribed in common Article 3 and should therefore likewise be considered to apply in all non-international armed conflicts. Virtually every OAS member state has also ratified one or more of the 1949 Geneva Conventions and or other humanitarian law instruments.[187]

64. Much of the treaty law canvassed above is widely considered to constitute customary international law[188] binding on all states,[189] including in particular the 1907 Hague Convention and its annexed Regulations concerning the Laws and Customs of War on Land,[190] the Four Geneva Conventions of 1949[191] including their grave breach provisions[192] and common Article 3,[193] and the core of Additional Protocols I and II,[194] including Articles 51(1), 52(1) and 75 of Additional Protocol I[195] and Articles 4, 5, 6 and 13(2) of Additional Protocol II.[196]

65. In addition, notwithstanding the distinctive regimes of protection that apply to international and non-international armed conflicts, it has been widely recognized that certain norms apply in all armed conflicts regardless of their nature.[197] These include the protections under common Article 3 and their corresponding provisions under Additional Protocol II,[198] as well as:

• The principle of military necessity, which justifies those measures of military violence not forbidden by international law that are necessary and proportionate to securing the prompt submission of the enemy with the least possible expenditure of human and economic resources.[199]

• The principle of humanity,[200] which both complements and inherently limits the doctrine of military necessity. This principle prohibits the infliction of suffering, injury or destruction not actually necessary, i.e. proportionate, for the realization of lawful military purposes.[201] Moreover, the principle of humanity also confirms the basic immunity of civilians from being the object of attack in all armed conflicts. Accordingly, the conduct of hostilities by the parties to all armed conflicts must be carried out within the limits of the prohibitions of international law, including the restraints and protections inherent in the principles of military necessity and humanity.[202]

66. Inherent in the principles of military necessity and humanity are the principles of proportionality and distinction. The principle of proportionality prohibits an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.[203] In a similar vein, the principle of distinction prohibits, inter alia, the launching of attacks against the civilian population or civilian objects and requires the parties to an armed conflict, at all times, to make a distinction between members of the civilian population and persons actively taking part in the hostilities or civilian objects and military objectives,[204] and to direct their attacks only against persons actively takin